Immunity of Former Heads of States andThose in Office under International LawStudentnameStudentIDDateof submission Introduction:The development andimplementation of the human and international crimes law is neither enforcedproperly nor is it considered as the most effective in the procedures andmechanisms of international law. The international law is made for imposing theobligations on different states of the world for the prosecution of criminalsthat are present in their territory. Similarly, the human rights law alsoincorporates the right for the people who violate the human rights law invarious countries. However, previous studies conducted to check the affectivityof international law and human rights law have argued that these laws oftenfail on various occasions.
The domestic lawsimplemented in many countries are also not including many relevantinternational human rights in them. International crimes are done by manypeople in the country including the state agent, who are regularly involved inbreaching of the state policy because they have the right of doing themaccording to international law. The government officials also is unable toenforce the international law because they find it hard to change the domesticlaw already present in the country. This article will tryto address the obstacles faced by the countries in the implementation of theinternational law, and the problems faced by them in changing the domestic lawaccording to the international standards. Additionally, this article alsopresent critical evaluation of the immunity in the former heads of the Statesthat lie under the umbrella of International law.
The uncertainty also lies inthe implementation of the international law, and how far the immunities areapplicable in the domestic law operated in the country. Therefore, thisarticle will examine the rationale for the conferment of different types of immunityincluding the scope, and critical analysis will be presented to determinewhether the immunities remain applicable in process of criminal relatedactivities. It is believed that two types of immunity exists in the immunityratione personae.
However, the articles represents the types of immunityaccording to the former head of states in different countries. The followingsections in the assignment present the critical evaluation of the immunity ofthe former heads present in various countries that come under internationallaw. Critical analysis of International law in heads of states:Some people in all thecountries enjoy the jurisdiction of the other states because of the positionthey hold in the country. These people are known as the status immunity orimmunity ratione personae. This position is given to those people that comeunder the international law, and are present on the higher position.Additionally, this position is given to only those people who are responsiblefor handling the international relations of the country.1It is believed thatall the judges in the Pinochet agreed that if Pinochet had remained the head ofstate then he would have been immune. Immunity is the condition in which thehead of state leaves the office for committing international crimes and criticalanalysis of those crimes will be present in this article in the context ofinternational law.
Head of state:According to thearticle presented by Bassiouni the first person to whom the immunity rationepersonae applies is the one who is present on the highest position in thestate.2However, it is not necessary that head of the state is the one and only personin the state. The person can also be one of the most influential personality ofthe state, who may be the symbol of sovereignty in the state.
The head of thestate enjoys the most number of benefits that come from the international laws,and represents the total organism present in the political system of thecountry.1Immunity in the criminal perspective for the international crimes:One point is clearthat senior officials in the country are hindered for the exercises carried outby them in the international functions, if they are arrested then detainedwhile carrying out those activities in the foreign state. Due to this reason,this type of immunity, by different authors is rated as prohibiting because itgives growth to the criminal activities on the international level.3 According to the research articlepresented by Crook the absolute nature of the immunity in the context ofratione personae means that it prohibits exercising the criminal jurisdictionnot only on the official capacity but in the private acts.
4Therefore, thearguments presented above can be concluded by saying that immunity targets tostop the criminal activities that are carried out on the official level, lyingunder the international criminal activities. Additionally, some of the authorssay that rationale for the immunity can be explained by saying that it is theact that is either conducted by the head of state in the office or before theentry to the office.5 However, the book of Smith arguesthat what the most important is not the alleged activity that was carried out,but whether the steps taken in the foreign state were legal or not according tointernational laws.
6This argument is supported by Hazel also who argues that attempt made forarresting and prosecuting the officials is purely related to violation ofimmunity.7The attempts made forthe prosecution of the officials is rated as the immunity violation whilst theinvitations by the foreign state for testifying or providing the informationvoluntarily do not act. Therefore, the attempts made for arresting orprosecuting these head of the states or officials will be the immunityviolation. However, some of the authors argue that this type of immunity atleast form some of the part only remains in action when the person remains inthe office.8 For example, in the Arrest Warrant case, the Foreign Ministers wereheld for the immunity ratione personae by the ICJ.
Moreover, they were furtherheld due to the absolute nature present in the immunity. Immunities and International crimes:Since theinternational crimes are dependent on the changing nature of personalities,therefore, the variety of crimes is also increasing. Due to the changing natureof the criminal activities, it has become difficult for the law creators tocreate the laws that will run in all the countries and are able to address allthe crimes.9Fuelled by many decisions, and dealing with the issues gives rise to changingthe international laws time to time, however, the position for the personalimmunities is reasonably clear.When the head of statebelonging to the government official and holding the personal immunity ispresent in the office, will be immune from the foreign national court’sjurisdiction even when he allegedly committed the international crime.
10The above mentioned rule was recently accepted and implied by the InternationalCourt of Justice (ICJ), and by the House of Lords and Belgian Court ofCassation. Although some articles have tried to rationalize the presented rule,the arguments don’t go in same direction. Simbeye has argued that whencompeting values are noted, it is appropriate that competing values should beattached with the immunity of the high state officials on the one hand and withthe accountability on the other.11 When prosecuting ahead of state, some other articles have also presented their arguments. Someauthors were found arguing that limited exception should be presented in therule. However, in the view of decisions made by the court, the dissentingopinions do not reflect the customer international law. According to theresearch article presented by Klabbers says that ICJ is the responsible partyfor changing and holding the authority of functional immunities, however, therules made by them are questionable, and needs consideration.
12Therefore, it is important to understand the reasons behind the arguments thatare presented by various scholars. The research of DuPlessis says that silence of ICJ on a narrow exception to the rule concerninginternational crimes has made the decision of national and international courtsambiguous.13 Therefore, to solve this problem,ICJ needs to solve the factors that are impacting on the validity andreliability of international law. Additionally, the laws developed on theglobal scale are heavily criticized by many scholars. One of the article saysthat the decision leaves the door open for the additional requirements and thepossibilities for classifying the international crimes under the private acts.
3 The rules covering theinternational criminal activities must be revised for making them moreeffective, since many scholars have criticized them for not following the rulesappropriately. Although, the solutions to many problems in context ofinternational crimes are present in the international crimes law, the big areain the law still remains ambiguous, and difficult to understand.14The solutions to various circumstances have been rated as the poor by somescholars. This section of the literature review will present the criticalreview of the poor infrastructure in the International crimes law, based on thearticles in the context. The internationalcrimes are not committed by the criminals are not according to the presentedlaws, therefore, it becomes difficult for the law enforcing agencies to decidethe punishment, since the immunities are not explained carefully.13 However, the article presented by Tladi statesthat international laws have ignored the fact that most of the internationalcrimes are most probably following the exercise of the state’s apparatus,thereby unintentionally, they are acting as the public one.
15Critical review of article 27 of the Rome statute:The article 27 of the internationallaw presents a clear statement that whatever the capacity of the head of thestate is, the criminal law will be applied with full authority to the respectedpersonnel. Therefore, the international law is same for all the people in the world,and does not provide any privilege to the states head.11 Although article 27 has tried to remove theICC jurisdiction from the international law, the articles argue that it hasfailed on various occasions. The first issue thatarise from the article 27 is the lack of applicability in the world. Accordingto the book written by Bottigliero the first issue thatarises from the article 27 is that the State Parties nationals are bounded bythis article, however, the position of nonState parties is less certain.
16The above argument is supported by the study of Tladi too who argues that non-Stateparties can be subjected to the court jurisdictions by many ways.15 The Article12 of the Rome Statute was also found stating that Court can exercise the jurisdictionover such nationals no matter those nationals are present in which country. Furthermore, if the criminals havecommitted the crime on the other non-state party’s territory, the court hasfull power, and it can practise the jurisdiction by taking the help of acquiescence.The research article presented by Murphy says that Security Council which isfollowing Chapter VII presented in UN charter can also refer to the ICCprosecutor, because in that it appears that crimes committed on internationallevel can be solved by following the guidelines.17The above statement is considered as controversial in some articles, because thenon-state parties argue that international law presented prohibits theimposition of the treaty obligations on the third states.5 Additionally,the article presented by Allen also says that this statute strip off the non-StateParties nationals from the international immunities before even the court goesfurther into investigation.18The articles 12 and 13(b) when studied were also found arguing with the statement.Now the application of the Article 27 tothe non-State parties will be examined.
The two points are needed to be noted. First,the position of the individuals with the court is needed to be examined; however,this document is not concerned with the immunities, which are still enjoyed bythe individuals in the foreign state. Additionally, in the previous statementsit was found that international law currently being operated is inapplicable tothe cases that involve international crimes. Therefore, it can be said that article27 is only relevant to the non-state national parties since it aims to removethe personal immunities. Application of Article 27 to Non-State Party Nationals:The principle relatedto the pacta tertiis nec nocent necprosunt is indicated in the Article 34 of the Vienna Convention presented forLaw of Treaties, which is also considered fundamental technique in the treatylaw.
When the article is observed first, the statement presented by Talmon looksvalid, who says that court can legitimately practice the jurisdiction over thenon-State parties, and however, the practice is limited to perform some actionsonly.19The statement was also found in the research article of Murphy who was found sayingthat Rome Statute, which is the multilateral treaty, is able to abrogate theinternational law treaty jurisdiction over nonState Party nationalsin certain circumstances, one would not expectthe Rome Statute, a multilateral treaty, to be able toabrogate the international law immunities accruing to officials of Statesnot party to the Statute. NonStates Parties have done nothingto waive their immunities. However, as with many legalmatters, delving more deeply reveals a number of underlying issues.
